Indian Polity - MARCH 2019 · 2019-03-30 · Relevant for: Indian Polity | Topic: Issues and...

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Source : www.thehindu.com Date : 2019-03-02

‘J&K ORDINANCE CLEARED BY UNION CABINETDOESN’T TINKER WITH 35A OR 370’Relevant for: Indian Polity | Topic: Issues and Challenges Pertaining to the Federal Structure, Dispute Redressal

Mechanisms, and the Centre-State Relations

The Union Cabinet on Thursday approved the Jammu and Kashmir Reservation (Amendment)Ordinance, 2019 that will pave the way to extend reservation in jobs, promotions and educationto people living 10 km from the International Border (IB) in Jammu. Earlier the benefits were onlyreserved for people living 10 km beyond the Line of Control (LoC) and affected by shelling andfiring from across the border.

The proposal to this effect came from the Jammu and Kashmir administration, which is atpresent under President’s rule. J&K Governor Satyapal Malik told The Hindu that the ordinancein no way affected the rights of people of the State nor did it tinker with Article 35-A, whichprovides special rights and privileges to permanent residents of J&K. The 740 km LoC in J&K isunder the operational control of the Army and 192 km IB in Jammu is manned by the BSF.

“People living along the IB in Jammu live under similar conditions as those along the LoC. Theyalso face continuous shelling and firing from across the border. While the population along theLoC was getting reservation benefits, those along the IB were not. Through this ordinance theanomaly has been corrected. It has nothing to do with altering 35A or Article 370,” Mr. Maliksaid.

He said since the State was under President’s rule, the ordinance had to be cleared by theCentre. An ordinance to implement the 10% reservation quota for the economically weakersections, as passed by the Parliament earlier this year, was also cleared by the President, hesaid.

A statement by the Press Information Bureau said the J&K Reservation Act, 2004 and the 2005Rules provide for vertical reservation in direct recruitment, promotions and admission in differentprofessional courses to various categories — Scheduled Castes, Scheduled Tribes, Socially andEducationally Backward Classes (Residents of Backward Area, Residents of Areas adjoiningActual LoC and Weak and Under Privileged Classes (Social Castes) along with horizontalreservation to the ex-serviceman and physically challenged Persons.

“However, the reservation benefits are not extended to the persons residing in the areasadjoining IB. Due to continuous cross border tensions, persons living alongside the IB sufferfrom socio-economic and educational backwardness. Shelling from across the border oftencompels these residents to move to safer places and is adversely impacting their education asEducational Institutions remain closed for long periods,” the statement said.

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THE HINDU EXPLAINSRelevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

A view of Election Commission of India in New Delhi. | Photo Credit: Sushil Kumar Verma

The model code refers to a set of norms laid down by the Election Commission of India, with theconsensus of political parties. It is not statutory. It spells out the dos and don’ts for elections.Political parties, candidates and polling agents are expected to observe the norms, on mattersranging from the content of election manifestos, speeches and processions, to general conduct,so that free and fair elections take place.

The EC traces its introduction to the 1960 Assembly elections in Kerala. During simultaneouspolls to the Lok Sabha and Assemblies in several States in 1962, the EC circulated the code toall recognised parties, which followed it “by and large”. In October 1979, the EC came up with acomprehensive code that saw further changes after consultations with parties.

The code comes into force on the announcement of the poll schedule and remains operationaltill the process is concluded, as provided in the notification. It is also applicable to a “caretaker”government on premature dissolution of a State Assembly, as was the case in Telangana.

The EC ensures that ruling parties at the Centre and in States adhere to the code, as part of itsmandate to conduct free and fair elections under Article 324 of the Constitution. In case ofelectoral offences, malpractices and corrupt practices like inducements to voters, bribery,intimidation or any undue influence, the EC takes action against violators. Anyone can report theviolations to the EC or approach the court. The EC has devised several mechanisms to takenote of the offences, which include joint task forces of enforcement agencies and flying squads.The latest is the introduction of the cVIGIL mobile app through which audio-visual evidence ofmalpractices can be reported.

Any activity aggravating existing differences or creating mutual hatred or causing tensionbetween different castes and communities, religious or linguistic, is a corrupt practice under theRepresentation of the People Act. Making an appeal to caste or communal feelings to securevotes and using places of worship for campaigning are offences under the Act. Bribery to votersis both a corrupt practice and an electoral offence under the Act and Section 171B of the IndianPenal Code. Intimidation of voters is also an electoral offence, while impersonating them ispunishable under the IPC. Serving or distributing liquor on election day and during the 48 hourspreceding it is an electoral offence. Holding public meetings during the 48-hour period endingwith the hour fixed for the closing of the poll is also an offence.

According to the EC, the code states that the party in power — whether at the Centre or in theStates — should ensure that it does not use its official position for campaigning. Ministers andother government authorities cannot announce financial grants in any form. No project orscheme which may have the effect of influencing the voter in favour of the party in power can beannounced, and Ministers cannot use official machinery for campaign purposes.

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PROBING THE PRESSRelevant for: Indian Polity | Topic: Separation of powers between various organs

The essential distinction between public interest and the interest of the government of the dayseems to have been lost on the Attorney General. K.K. Venugopal’s claim that documentspertaining to the purchase of Rafale jets published by the media, including this newspaper, havebeen “stolen” amounts to a definitive admission that they are genuine. The documentaryevidence published so far indicates that “parallel parleys” held at the behest of the PrimeMinister’s Office undermined the Indian Negotiating Team’s discussions with the French side;that internal questions had been raised about the absence of bank guarantees to hedge againstpossible default by the vendor; and that this had an adverse effect on the pricing of the 36 jets tobe bought in fly-away condition. Few can doubt that these revelations advance the publicinterest, and have no impact on national security. The publication of the documents and newsreports based on them constitute the legitimate exercise of the freedom of the press. The threatof a criminal investigation under the Official Secrets Act, 1923 (OSA) is disappointing, if notdownright perverse. The government is also on weak legal ground when it claims the courtshould not rely on “stolen” documents while hearing petitions seeking a review of its judgmentdeclining a probe into the Rafale deal. As the Bench, headed by Chief Justice of India RanjanGogoi, pointed out, the manner in which a document has been procured is immaterial, if it isrelevant to an adjudication. As one of the judges asked, can the government seek shelter behindthe notion of national security if a corrupt practice had indeed taken place?

All you need to know about the Official Secrets Act

It is to the credit of successive governments that the OSA has rarely been used against thepress. The law primarily targets officials entrusted with secret documents, codes and othermaterial, but Section 5 criminalises voluntarily receiving and possessing such documents, ifgiven to them in contravention of the Act. In a limited examination of this section, the LawCommission observed in a 1971 report that its wording was quite wide. However, it left it to thegovernment to decide against prosecution, if the information leak did not materially affect thestate’s interest. There is undoubtedly a case for distinguishing between an act that helps theenemy or affects national security, and one that advances legitimate public interest. In timeswhen information freedom is seen as salutary for democracy, laws such as the OSA should yieldto the moral imperative behind the Right to Information Act. This reasoning is embedded inSection 8(2) of the RTI Act, which says that notwithstanding the provisions of the OSA, “a publicauthority may allow access to information, if public interest in disclosure outweighs the harm tothe protected interests.” The government should refrain from using its secrecy laws to contendwith embarrassing media revelations. It would do well instead to respond responsibly toquestions thrown up by the revelations.


A viable financial mechanism must be evolved to remove pollutants in power plants




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THE IMPERIAL CABINET AND AN ACQUIESCENTCOURT

Relevant for: Indian Polity | Topic: Separation of powers between various organs

In the last six months, the Supreme Court has frequently found itself in the headlines. InSeptember, it handed down four landmark judgments on fundamental rights: decriminalisingsame-sex relations and adultery, opening up Sabarimala to women of all ages, and (partially)upholding Aadhaar. And soon after that, the court was in the eye of a political storm. Its Rafaleand Central Bureau of Investigation judgments were subjected to intense scrutiny, and continueto be debated.

What exactly is a money bill?

After the dust has settled, however, and these blockbuster cases consigned to memory, themost important legacy of the 2018-19 Supreme Court may lie elsewhere: in two decisions thathave attracted less attention. These are the court’s findings on the legal status of “money bills”(a part of its Aadhaar judgment), and its judgment on the distribution of power between theCentral government and the government of Delhi. These two decisions were about constitutionalstructure: about the balance of power between the different organs of the state, the federalcharacter of the Republic, and fundamental questions of democratic accountability.

We are often tempted to think that our rights and freedoms depend upon the Constitution’sfundamental rights chapter, and the judiciary’s willingness to enforce it against the state. Thereare other important ways, however, in which a Constitution guarantees freedom. It does so, also,by dividing and distributing political power between state organs in order to avoid concentrationof authority, and to ensure that these different organs act as checks and balances upon eachother. The surest dam against totalitarianism is to guarantee that no one stream of authoritybecomes powerful enough to sweep away everything else in the time of a flood.

Therefore, away from the glamour of fundamental rights adjudication, and away from the thrill ofpolitical controversy, it is in cases involving constitutional structure that courts often exercisesignificant influence upon the future direction of the Republic. And it is in this context that wemust examine the recent decisions on money bills and on federalism.

Is the Aadhaar Bill a Money Bill?

First, money bills. Despite strong protests, the Aadhaar Act was passed as a money bill. Thisaffected a crucial element of our constitutional structure: bicameralism. Bicameralism, in ourparliamentary democracy, requires that a bill must be scrutinised and passed by both Houses ofParliament before it becomes law. The Lok Sabha represents the voice of the democraticmajority. The Rajya Sabha represents the interests of the States, as well as perspectives free ofimmediate, electoral interests. The basic idea is that law-making is a balanced and deliberativeprocess, not an exercise in pure majoritarianism. The crucial purpose of the Rajya Sabha is toact as a check and a balance upon the Lok Sabha, by scrutinising bills in a more deliberativeand reflective manner, and raising concerns that may have been glossed over or evaded in theLower House.

The role of the Rajya Sabha becomes even more important when we consider a unique Indianinnovation: anti-defection. In the 1980s, it was decided that the only way to combat partydefections was to disqualify members who voted against the whip, except under very tough

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conditions. This effectively meant the end of intra-party democracy: individual MPs could nolonger vote according to their conscience, and had to follow the diktats of the cabinet.Consequently, where there is a single-party majority in the Lok Sabha, the executive caneffectively rule by decree, as it is in no threat of losing a vote if it fails to persuade its own partymembers. With the Lower House no longer able to check the government, the only remaininglegislative forum that can then do so is the Rajya Sabha.

A money bill, however, takes the Rajya Sabha out of the equation: it only needs Lok Sabhaapproval. In combination with the anti-defection law, this places absolute power in the hands ofthe executive, and skews the democratic process. Hence, its use must be restricted to the mostlimited of circumstances. This was what was argued in the Aadhaar case: that the terms of theConstitution (Article 110) mandated that money bills be narrowly limited to those that fellexclusively within the categories set out in Article 110. The Aadhaar Act, which established abiometric database and set up an authority (the UIDAI) to administer it, could not in any sensebe called a “money bill” simply because the funds for the Authority came from the ConsolidatedFund of India. The majority judgment in the Aadhaar case, however, allowed the Act to stand asa money bill (after taking out a provision allowing private party use), and thus, effectively, guttedthe Rajya Sabha’s role in the democratic process. After the court’s judgment, governmentswanting to bypass Rajya Sabha scrutiny on a range of important issues can simply insert aprovision specifying that money for a project is to come from the Consolidated Fund.

Meanwhile, the court was also considering another issue of democratic structure: the disputebetween the central government (acting through the Lt Governor) and the government of Delhi.This dispute effectively turned upon the text of Article 239AA of the Constitution, a somewhatambiguously drafted provision establishing Delhi as a hybrid federal entity — somewherebetween a State and a Union Territory. In July 2018, while considering the overall constitutionalposition, a five-judge bench of the Supreme Court made it clear that, wherever the constitutionaltext was capable of more than one interpretation, the court would favour a reading thatincreased democratic accountability: that is, in case of doubt, power would lie with thegovernment that had been directly elected by the people (in this case, the Delhi government).

Delhi dilemma: Centre vs State

When it came to applying this principle to the specific disputes between the two entities,however, a two-judge bench of the Supreme Court seemed to resile from this fundamentaldemocratic principle. The February 2019 judgment bears very little evidence of democraticconcerns: the heart of the dispute was about control over the civil services, which directlyimpacted day-to-day governance. While the constitutional provisions themselves wereambiguous, one judge held that the Delhi government had no control over civil servants above acertain rank, while another judge held that the Delhi government had no control over civilservants at all.

In 1973, the American historian Arthur M. Schlesinger coined the term “Imperial Presidency”, tocharacterise the increasing concentration of power in the office of the President, at the cost ofother democratic institutions (such as the U.S. Congress and the Senate). Over the last fewdecades, many scholars have noticed this drift towards the increased powers of the politicalexecutive, across liberal democracies.

The Supreme Court’s decisions on Articles 110 (money bills) and 239AA (status of the federalunit of Delhi) have concentrated greater power in the hands of the executive. By expanding thescope of what counts as money bills, the court has set the cabinet down the road of transformingitself into a Roman-style imperator. And by privileging the centralising tendencies of theConstitution over its federalising ones, the court has squandered the chance to develop a strong

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jurisprudence on the federal structure, that could have been of use in future disputes betweenthe Central government and various federal units. The impact of these decisions will not be feltimmediately, but in the long run, unless set right, one enduring legacy of the recent court — and,in particular, of Justice A.K. Sikri, who authored both decisions and who retired this week —might be the judicial facilitation of an imperial executive.

Gautam Bhatia is a Delhi-based lawyer. Disclaimer: he was part of the legal team challengingAadhaar.







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MARGINAL RISE IN WOMEN CANDIDATES, SAYS ADRRelevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

The increase in number of women candidates in the last three Lok Sabha polls remainednominal. Of the 51,143 candidates who contested various elections across the country, only4,173 were women, says the Association for Democratic Reforms.

The maximum number of 150 women MPs and MLAs belong to the BJP, followed by 91 MPsand MLAs from the Congress.

The ADR analysed the affidavits of 51,143 male and female candidates, which included 4,865sitting parliamentarians and MLAs. Among the 4,173 women candidates, 546 (13%) haddeclared criminal cases against them. In all, 4,173 (25%) are crorepatis.

“Among the State assemblies, none of the States had more than 10% of women candidates inthe elections. States such as Jharkhand, West Bengal, Sikkim and Chhattisgarh had the highestpercentage of women candidates in their respective Assembly elections,” said the report. Of the4,865 sitting MPs and MLAs, only 440 (9%) are women, 94 of them have declared criminalantecedents and 310 (70%) are crorepatis. The Lok Sabha has 66 (12%) and the Rajya Sabhahas 25 (11%) women parliamentarians.






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STRANGE TURN: ON SC'S ORDER REGARDINGAYODHYA DISPUTE

Relevant for: Indian Polity | Topic: Judiciary in India: its Structure, Organization & Functioning, Judges of SC &High Courts, Judgments and related Issues

Mediation, especially when it is at the instance of a court, is a welcome option for thoseembroiled in protracted civil disputes. A compromise could indeed be preferable to an order thatmay leave one side aggrieved. However, it is questionable whether this principle can be appliedto all disputes and in all situations. The Supreme Court’s order appointing three mediators to finda solution to the Ram Janmabhoomi-Babri Masjid dispute is quite strange and incongruous,given that all such previous attempts have ended in failure. Further, the case is ripe for finalhearing, and not all parties favoured mediation. The dispute over the site at Ayodhya, where a16th century mosque stood until it was torn down by Hindutva fanatics in December 1992, hasremained intractable since 1949. After the demolition of the Babri Masjid, the President referredto the Supreme Court the question whether there was a temple to Lord Ram before the mosquewas built at the site. The court, in a landmark decision in 1994, declined to go into that question.More important, it revived the title suits and, thereby, restored due process and the rule of law.The present attempt by the Supreme Court to give mediation a chance within a narrow windowof eight weeks goes against the spirit of the 1994 decision. After all, it was that verdict that madepossible the 2010 judgment of the Allahabad High Court, which favoured a three-way split of thesite among Ram Lalla, the Sunni Wakf Board and the Nirmohi Akhara, which is under appeal.

Ayodhya title dispute: Who are the mediators appointed by the Supreme Court?

A welcome feature of the court-mandated mediation attempt is that it will not consume muchtime; the same eight weeks are needed for preparation for the final hearing. The confidentialityrule will be helpful as none would want the atmosphere to be vitiated by premature disclosureswhen the country is in election mode. However, the inclusion of Sri Sri Ravi Shankar as one ofthe mediators is controversial. In the past, he has made remarks to the effect that Muslims oughtto give up their claim and that the failure to find a negotiated settlement will result in “civil war”. Itis true that the prolonged problem has had an adverse impact on the body politic and some“healing” is required. But the injury to the country’s secular fabric was caused by fanaticalHindutva groups that launched a revanchist campaign on the plea that some temples had beenturned into mosques by invaders. The only way to heal this festering wound on the body politic isto render complete justice not only in the civil case, but also for the criminal act of the demolition.No one must be left with the impression that the exercise is aimed at privileging the faith-basedargument that the mosque stood at the exact spot where Lord Ram was born over the legalquestion on who holds the title to the land.


A viable financial mechanism must be evolved to remove pollutants in power plants




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Source : www.indianexpress.com Date : 2019-03-09

THE ROAD TO A CLOSURERelevant for: Indian Polity | Topic: Judiciary in India: its Structure, Organization & Functioning, Judges of SC &

High Courts, Judgments and related Issues

© 2019 The Indian Express Ltd.All Rights Reserved

Sanjay R Hegde is a senior advocate in the Supreme Court and tweets @sanjayuvacha.

Ayodhya literally means land without war. Ironically the Ayodhya dispute, over building a templeor reconstructing a mosque on a piece of land claimed by both sides, has caused many a violentact over the Subcontinent’s length and breadth. From the violence during L K Advani’s RathYatra in 1989, to the riots in India, Pakistan and Bangladesh when the Babri Mosque wasbrought down in 1992, to the Bombay riots of 1993 and the Gujarat riots of 2002, the toll onhuman life and property has been colossal. And yet the problem seems to persist, with thematter meandering through the legal system. In 2010, the Allahabad High Court decided thesuits between the parties by partitioning the land into three portions.

The solution satisfied no one and all parties appealed to the Supreme Court. The judgment ofthe Allahabad High Court ran into a few thousand pages, but the exhibits and record ran intoseveral thousand more. To tie down three or more judges of the Supreme Court, to hear anappeal for months together is not a feasible proposition, in a court with a high attrition rateamong judges. It is against this backdrop that we must evaluate the recent Supreme Courtorder, asking a panel of mediators to mediate the dispute, within a period of eight weeks.

The mediators are men of eminence. The chairman, Justice F M I Kalifulla has served withdistinction on the Supreme Court. Sriram Panchu is a senior advocate, who has pioneeredmediation as an alternative dispute resolution mechanism in this country. Sri Sri Ravi Shankarhas come a long way from his initial days with Mahesh Yogi. However, one possible criticism ofthe panel’s composition is the lack of a woman on it. The panel has to hold sittings in Faizabadand submit a status report within four weeks and try to resolve the issue within eight weeks.

To the untrained mind, mediation is simply a judgeless negotiation. To many minds, the problemin Ayodhya cannot be negotiated. On the Hindu side, some feel that while representing theinfant deity, Ram Lalla, they lack authority to abandon any claim on his behalf. On the Muslimside, there are those who say that the land on which the mosque stood was dedicated to Allah inperpetuity and no human can willingly sign away anything that is owned by Allah almighty. Someof us refuse to believe that divinity is enhanced or diminished by a possessory title over a parcelof land. The country, however, is tired of a never-ending internal conflict, which no amount ofgoodwill appears to resolve.This is where professional, active mediation comes in. Though Sreeram Panchu is the one withexpertise as a mediator, it is hoped that the others on the panel allow a professional mediationprocess to play out. A trained mediator knows how to focus on interests and not on positions.

Human needs and emotions are at the heart of interests. Mediation, in this case, needs toidentify, express and discuss those needs and emotions which lie at the heart of the dispute.The Hindu side needs an acknowledgment that India is a state with a Hindu majority, whosereligious hurt needs redressal. The Muslim side needs reassurance that they live as equalcitizens of India, with constitutional guarantees of protection of their lives, property and places ofworship. Both sides need a win-win situation where they can step away from conflict, without aloss of face. A focus on facilitating honest, heart-to-heart dialogue, instead of focusing on

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mediating a settlement, may yet yield results. Settlements often emerge without struggle, whenunderlying emotions are assuaged.

Nearly 25 years ago, the Supreme Court hearing the previous round of the Ayodhya case wrote:“The hearing left us wondering why the dispute cannot be resolved in the same manner and inthe same spirit in which the matter was argued, particularly when some of the participants arecommon and are in a position to negotiate and resolve the dispute. We do hope this hearing hasbeen commencement of that process which will ensure an amicable resolution of the disputeand it will not end with the hearing of this matter. This is a matter suited essentially to resolutionby negotiations which does not end in a winner and a loser while adjudication leads to that end.

It is in the national interest that there is no loser at the end of the process adopted for resolutionof the dispute so that the final outcome does not leave behind any rancour in anyone. This canbe achieved by a negotiated solution on the basis of which a decree can be obtained in terms ofsuch solution in these suits. Unless a solution is found which leaves everyone happy, thatcannot be the beginning for continued harmony between ‘we the people of India’.”

Professional mediation on this dispute is, perhaps an idea, whose time has come around at longlast. Here’s hoping for resolution devoutly to be prayed for.

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© 2019 The Indian Express Ltd. All Rights Reserved



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THE MEDIATION TRAPRelevant for: Indian Polity | Topic: Judiciary in India: its Structure, Organization & Functioning, Judges of SC &



Pratap Bhanu Mehta is vice-chancellor of Ashoka University. He was earlier president, CentrePolicy Research, New Delhi, one of India's top think tanks. Before he started engaging withcontemporary affairs, he taught political theory at Harvard, and briefly at JNU. He has writtenextensively on intellectual history, political theory, law, India's social transformation and worldaffairs. He is the recipient of the Infosys Prize, the Adisheshiah Prize and the Amartya SenPrize.

The Ram Janmabhoomi-Babri Masjid dispute has long been accompanied by a sense offoreboding. The dispute has been historically charged, politically divisive and communallyviolent, putting both the nation and the Constitution at risk. So putting the dispute into mediationunder the aegis of the Supreme Court evokes a resigned weariness. For decades, the Courtabdicated its role and is now openly admitting that conventional legal and constitutional tools arepowerless in the face of faith. So it is placing its hopes for “reconciliation” on mediation. Thekeenness to take this issue off the agenda is such that all parties hope India can move past theAyodhya moment. It is hard to grudge an attempt at “reconciliation”.

But the weariness leading us to accept the mediation is also accompanied by a profoundwariness of what might transpire. Before we come to the politics, it is hard not to remark on thespiritual hollowness of this moment. What is the framing of the mediation that should beacceptable? If the mediation is about getting the parties to the title dispute agree to an outcome,this remains something like a property mediation. If the framing is of reconciliation, then thequestion is: Who exactly is meant to reconcile with whom? And on what terms? The veryframing of this dispute as one that requires reconciliation is an admission of defeat. It is anadmission that the dispute is not going to be adjudicated on the terrain of truth, justice or dueprocess.

The framing gives into one deeply problematic premise. The premise is that this is a disputebetween two communities that require reconciliation. But who are these communities? Who wasfeeling unreconciled to their fellow citizens in the first place? Wasn’t the sense that “minorities”need to give a gesture to show their good intent already a nefarious piece of politics? SomeHindus want a temple. But what about those Hindus who think there was a temple on that sitethat was demolished in medieval India, but that it is still not sufficient grounds for building atemple there? What about those devotees who think that given our recent history, a justreconciliation would involve none of the traditional symbols — mosques and temples —triumphing over the site? Instead, the site should be an expression of a common hope for thefuture, a true Ram Rajya, not a reminder of sectarian divisions.

What about those whose keen devotional and historical sense tells us that Ram’s greatesttriumph was that he did not become a totem in the games of sovereignty and power? In fact,there is a real danger, already apparent, that the cultural and spiritual sovereignty of Ram thatwas so creatively engineered by the brilliance of figures like Tulsidas is being overturned. In thisconstruction, Ram is a constant, intimate presence: The Vaishnava turn that centred on “SriRamchandra kripalu bhaja man” was an audacious piece of spiritual thinking, the beating heartof Hinduism in North India. Those who believed all this were never in the need of being

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reconciled. In fact, they worried that Ram was being reduced to a coarse game ofmajoritarianism; diminished by being aligned with a hateful and reactionary politics and renderedspiritually bankrupt by being reduced to a totem of sovereign power. If this is a reconciliationbetween communities, will these voices be represented? Or is the reconciliation only for thosewho want to monopolise Ram as a vehicle for historical revenge, whose sense of feignedinsecurity requires a catharsis?

Then there is the politics of the occasion. There are three traps: Timing, personal and framing.Although ostensibly the Court has taken the issue off the agenda by giving eight weeks, it wouldbe foolish not to see that the timing of the attempt subtly helps the BJP. While the Court hasprobably acted with the best intent, the timing will lend fillip to one of BJP’s central claims. Theclaim is this: Hindu demands are taken seriously only when it is in power. The mediation maynot result in much. But the underlying gesture involved in the Court claim that this is about“sentiment” has an elective affinity with BJP’s politics. Sending it to mediation can be claimed asprogress.

I happen to think that Sri Sri Ravi Shankar’s appointment as mediator is deeply problematic. Hehas an openly declared position on the issue, has more or less intimidated institutions arguingthat violence will ensue if a temple is not built, and represents the unsavoury aspects of amodern entrepreneurial figure to whom proximity to power matters more than spiritual values.

There is a third sense in which this mediation attempt is a trap. Suppose for moment that theonly two alternatives on the table are building a temple at the site (with some mosque being builtsomewhere else), and not building a temple. Now imagine if the mediation fails to secure atemple. Let us not put too delicate a point on this. Who do you think will be blamed? On theother hand if a temple is secured, who do you think will claim the triumph? We may not knowhow the issue plays out in this election. But unless there is a larger political commitment tomaking sure that the outcome of the mediation is not politicised one way or the other, the issuewill continue to simmer.

In this sense the Court has not understood the logic of its own claim that this is about sentiment.If it is about sentiment, why should three mediators or the small groups have any moreimprimatur than the Supreme Court of India? The Allahabad High Court‘s judgment was a caseof panchayati justice. But it did shrewdly realise that putting the onus on parties to find a solutionmakes them possible political targets.

There have been past attempts at mediation. The fact that they were overtly political wasactually their virtue, not their failing. At least they openly acknowledged there is a politics to this.If this indeed is about sentiment, then India needs a larger political settlement againstcommunalism, against the idea that our conception of citizenship and nationhood is tied to somestory about medieval India that both the Left and Right have peddled. It remains to be seenwhether this mediation can turn the needle on these large issues. For India’s sake, we hope themediation can transcend the limitation of its framing, and think of a truer reconciliation, onewhere no community triumphs. Only India and its constitutional values does.

The writer is vice-chancellor of Ashoka University. Views are personal



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A COMPROMISE IS STILL POSSIBLE: ON AYODHYADISPUTE


The Supreme Court’s attempt to maintain Hindu-Muslim harmony through a mediatedsettlement of the long-standing Babri Masjid dispute deserves appreciation. But it has raised acouple of concerns too. One relates to the choice of a mediator, and the other to the efficacy ofmediation at this stage.

By definition, a mediator is a neutral third party who facilitates a negotiated settlement betweenadversarial contenders. Unfortunately, the neutrality of one of the three court-appointedmediators, Sri Sri Ravi Shankar, has come into question as some of his public pronouncementsin the recent past appear to negate his supposed disinterestedness.

A year ago, in an open letter to the All India Muslim Personal Law Board (AIMPLB), Sri Sri RaviShankar had said: “People from both communities who are adamant on following the court’sverdict are also driving the issue to a situation of defeat.” The “best solution”, therefore, is “anout-of-court settlement in which the Muslim bodies come forward and gift one acre of land to theHindus who in turn will gift five acres of land nearby to the Muslims, to build a better mosque.”

Ayodhya title dispute: Who are the mediators appointed by the Supreme Court?

He even told Muslims that giving up their claim to the disputed property did not amount to“surrendering this land to the people who demolished the Babri Masjid or to a particularorganisation. On the contrary, they are gifting it to the people of India”.

Apart from the fact that this position betrays Sri Sri Ravi Shankar’s bias in favour of disputantsbelonging to one religion, it is difficult to understand the justifiability of treating a gift to Hindus asa gift to the people of India. Does he regard only Hindus as “the people of India” to the exclusionof other communities?

Nonetheless, it stands to reason that Muslims would be in a position to gift the land only whentheir ownership of it is confirmed by the Supreme Court. If Muslims lose the case, the entire landwould come under the control of Hindus and the question of Muslims giving up their claim wouldthen be rendered redundant.

But the Art of Living founder thinks that even a Hindu victory would not be conducive to peace. Itcould foster Muslim resentment and may “lead to riots throughout the country”, he told theAIMPLB, thereby insinuating that Muslims are violent. He seems to be unaware that Muslimshave agreed to abide by the court verdict whichever way it goes. Now that he has been made amediator, Sri Sri Ravi Shankar must clarify if he still stands by his statements.

Despite Hindu groups opposing a negotiated settlement, the Supreme Court made it clear thatan attempt should be made to settle the dispute by mediation. It overruled their objections byinvoking Section 89 of the Code of Civil Procedure (CPC) which allows the court to refer anydispute to one of the four modes of non-adjudicatory resolution processes: namely, arbitration,conciliation, judicial settlement (including settlement through Lok Adalat), or mediation. In thiscase, the court opted for mediation.

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Strange turn: on SC's order regarding Ayodhya dispute

This was again opposed on the basis of a two-judge Supreme Court judgment in Afconsinfrastructure and Ors. v. Cherian Verkay Construction and Ors (2010). It illustratively explainedthat mediation cannot be done in a representative suit which involves public interest or theinterest of large number of persons who are not represented in the court.

But the five-Judge bench led by Chief Justice of India Ranjan Gogoi differed. Citing theprovisions of Order 1 rule 8 CPC and Order XXIII rule 3-B, it stated that there was no legalimpediment to making a reference to mediation. Whether the said CPC provisions would applyin the event parties arrive at a settlement in the mediation proceedings was left open to bedecided later.

Also, what the Supreme Court had frowned upon in Afcons was a civil court exercising powerunder Section 89 of the Code to refer a suit for “arbitration” without the concurrence of all theparties to the suit. But the court is free, the Supreme Court had said, to consider and decideupon any non-adjudicatory resolution method other than arbitration such as judicial settlement ormediation.

Questions still remain. If the Hindu groups continue to reject mediation, how will this dispute beresolved? And if they agree to negotiate, will the compromise they reach with Muslims bebinding on all Hindus in India?

Even Justice D.Y. Chandrachud, who conceded that a negotiated settlement is most ‘desirable’in this case, was initially not sure if such a settlement could bind millions of Hindus and Muslimsas the issue is not an ordinary dispute between two private parties.

If examined closely, it would be seen that the Babri Masjid dispute is not really an explosiveissue affecting the religious sentiments of millions of Hindus and Muslims as has beenportrayed. This may have been the case in the initial years after the illegal demolition of theBabri Masjid. But today, more than a quarter century later, such a portrayal should be construedas having entered the realm of political mythopoeia where myths of various kinds are created atthe hustings for electoral advantage.

The fact is, there is no evidence to show that the handful of parties claiming to represent Hindusand Muslims in this case are fully backed by their respective communities. In other words, theBabri Masjid/Ram Janmabhoomi imbroglio is no longer a life-affirming issue for the Indianmasses, who are more concerned about jobs, poverty alleviation and access to affordablehousing, health care and education.

That said, both communities cannot afford to let the Ayodhya dispute simmer forever and stallthe country’s socio-economic growth. The main reason for the unrelenting Muslim attitude is thefear that if they give up their claim on the Babri Masjid, Hindu groups would ask for other“disputed” mosques to be handed over. After all one of the post-demolition kar sevak slogans in1992 was, “Yeh toh sirf jhanki hai, ab Kashi, Mathura baaki hai (This is only the trailer, nowKashi and Mathura remain),” in which Kashi and Mathura are metonyms for two more disputedplaces of worship.

If this Muslim fear is addressed by the Hindu parties to the dispute, and also by influentialorganisations such as the Rashtriya Swayamsevak Sangh and the Vishwa Hindu Parishad, thechances of amicably resolving this seemingly intractable conflict would exponentially increase. Acollective assurance from the Hindu side that it would not stake claim to any other “disputed”mosque in India could be the face-saving compromise and win-win situation both sides are

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looking for.

A. Faizur Rahman is the secretary-general of the Islamic Forum for the Promotion of ModerateThought. E-mail: [email protected]







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WHAT IS FIRST-PAST-THE-POST SYSTEM?Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

The first-past-the-post (FPTP) system is also known as the simple majority system. In this votingmethod, the candidate with the highest number of votes in a constituency is declared the winner.This system is used in India in direct elections to the Lok Sabha and State LegislativeAssemblies. While FPTP is relatively simple, it does not always allow for a truly representativemandate, as the candidate could win despite securing less than half the votes in a contest. In2014, the National Democratic Alliance led by the Bharatiya Janata Party won 336 seats withonly 38.5% of the popular vote. Also, smaller parties representing specific groups have a lowerchance of being elected in FPTP.








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A TICKET TO RISERelevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties


Women account for 49 per cent of India’s 90 crore voters; the turnout of women voters has risensharply over the years, and was the highest ever in the last Lok Sabha elections (at 65.5 percent). But India’s representative democracy has defiantly refused to accord political equality towomen — less than 12 per cent of its Lok Sabha legislators are women. Odisha Chief Ministerand BJD chief Naveen Patnaik’s decision to field 33 per cent women in 21 seats in the cominggeneral elections is, therefore, a landmark move — one which must be embraced heartily by thepolitical mainstream.

Patnaik pointed out that he was walking the path laid out by his father, the late Biju Patnaik, whowas among the first votaries of 33 per cent reservation for women in panchayats. That ideatravelled well, and the reservation was raised to 50 per cent of seats in several states. Therewere naysayers aplenty — with the commonly-held patronising belief that women would onlyserve as proxy candidates for male relatives. But the panchayati raj experience shows otherwise— more women have taken up leadership roles at the micro-level, despite obvious barriers, suchas the (recently-scrapped) minimum education criterion to contest the polls in Rajasthan. Thathas created a critical mass of politically engaged women which is, perhaps, reflected in votingturnouts and in assertive demands — for instance, the push for prohibition in several states. Butwhat after? The roadmap from panchayat to assembly and Parliament was never laid out —parties dodge the question with excuses such as winnability of candidates, while a closedpolitical system remains most pliant to money power, family connections and, sometimes, simplythe XY chromosome. The UPA government introduced the Women’s Reservation Bill in 2008 —and then shut the door on it. In this backdrop, the BJD has shown a way out of chronic tokenismover women’s political participation — if passing a bill to reserve seats for women is too muchhard work in these polarised times, each party must push more women candidates into the fray.

Over the years, one of the successes of Indian democracy has been the way it has expanded toaccommodate and articulate various interests — the upper-caste veto on politics, for instance,has been seriously challenged. But this push towards inclusivity has comprehensively excludedwomen, with whom political parties rarely even hold a conversation. True, there is no monolithiccategory of Indian woman, who is shaped by her caste, language and class location. But thatdiversity of political ambitions and needs — even the contestations over it — must be reflectedin the making of policy and laws, and in assemblies and Parliament. Even the existing systemhas thrown up strong leaders such as Mamata Banerjee, Mayawati, J Jayalalithaa, amongothers, who stuck on at great personal cost to themselves. But a new generation of Indianwomen is ready to embrace their ambitions. It is time for political parties to open their doors.





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SC QUESTIONS GOVT. ON TRACKING ASSETSRelevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

The Supreme Court has asked the government to confirm within two weeks whether its February2018 judgment to set up a permanent mechanism to track unnatural increase in the assets ofelectoral candidates had been complied with.

A three-judge Bench led by Chief Justice Ranjan Gogoi on Tuesday directed the government tostate whether there was any mechanism to deal with the non-disclosure of assets and incomesources by a candidate.

The court has asked the government to clarify whether it has made the necessary amendmentsin Form 26, mandating submission by the candidates of information whether they suffer from anydisqualification under the provisions of the Representation of the People Act, 1951.

The Bench directed the Secretary of the Legislative Department to file his reply within twoweeks.

The order came on a contempt petition filed by NGO Lok Prahari. It was a petition by this NGOthat had led to the February 16, 2018 verdict. The judgment had trained the spotlight on theexponential rise in the assets of politicians within a span of just five years.






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WHAT IS PROPORTIONAL REPRESENTATION?Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

This refers to an electoral system in which the distribution of seats corresponds closely with theproportion of the total votes cast for each party. This is a more complicated but representativesystem than the first-past-the-post (FPTP) system, which is used in India. If a party gets 40% ofthe total votes, for example, a perfectly proportional system would allow it to get 40% of theseats. Some countries used a combination of the proportional representation system and theFPTP system.








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WHAT IS TACTICAL VOTING?Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

Also known as strategic voting, this refers to the act of voting for a particular candidate orpolitical party not because the voter necessarily supports them but because she wants toprevent some other party or candidate from winning. For example, a voter who prefers a leftistcandidate would vote for a centrist candidate in order to prevent a right-wing candidate fromwinning because the leftist candidate is weak in that constituency.








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THE NEED FOR CONSTITUTIONAL COURAGE: ONAYODHYA DISPUTE


The Supreme Court’s decision to appoint a panel of mediators to resolve the long-standingRam Janmabhoomi-Babri Masjid (Ayodhya) dispute is deeply problematic. By taking this route,the court has given the impression that the dispute is best solved outside the legal domain. In avery short span of time, the court has moved from its position of treating this as a title dispute toa matter involving religious sentiments. It has not explained what led it to change its stance,especially since mediations that have taken place in the past have failed.

The idea of mediation was mooted in 2017 by a Bench headed by the then Chief Justice ofIndia, J.S. Khehar. The Bench had suggested that the issue was much larger than ownership ofland, and that mediation might help in “healing relations”. After Justice Khehar, Chief JusticeDipak Misra insisted on treating it as a land dispute only. Now, the court has again brought backsentiments into the legal discourse. This wavering and ambiguity in the court has accompaniedthe case all along.

A compromise is still possible: on Ayodhya dispute

Sentiment is a problematic word, especially when there are two political sentiments competingwith each other. This is not a question of the majority community feeling deprived of a temple atthe birth place of Lord Ram. On the other hand, it is a majoritarian political ploy masqueradingas religious sentiment. This is a ploy to subjugate the minority Muslim community further, byplaying a symbolic game. In this game, the numbers are stacked against Muslims. Lazycommon sense holds that the minority must understand the ‘historical injustice’ done to Hindusby their ancestors and atone for it by leaving the site for them.

Moreover, even if we accept the notion of contending sensitivities, one must not ignore thesentiments of those Hindus who do not consider this issue as one that defines their identity.There are also many Hindus who would not like a temple to come up in Ayodhya by displacing amosque. How will these myriad views be represented in the mediation process, which beganon March 13 in Faizabad? By creating two neat sides, the court has validated the claim of theRashtriya Swayamsevak Sangh and its political arm, the Bharatiya Janata Party, and weakenedthe position of the Hindus who contest this division.

The Ram Janmabhoomi-Babri Masjid issue was never religious. The BJP has always includedthe promise of constructing a Ram temple in its election manifestos over the years. L.K. Advani’s1990 rath yatra not only led to the eventual demolition of the Babri Masjid, but expanded thenational footprint of the BJP. The campaign was aimed at denigrating Muslims and entrenchingtheir ‘foreignness’ in the minds of Hindus by using the figure of Babar.

Since the court has itself digressed from the brief before it, one can ask why it did not think itnecessary to first address the criminality of an act in 1949, when the idol of Lord Ram wasplaced in the Babri mosque on the night of December 22, which happened much before thedemolition of the mosque itself. Also, the bloodletting accompanying the demolition of themosque cannot be dissociated from the act. Why is it that the issue of sentiments is givenprimacy and not the criminality of the act, when the court is equipped to address the latter? Whyis the court wading into the mediation route yet again after so many years of hearing, and when

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the time is right for taking on majoritarian audacity?

Further, the eight-week time limit for the mediators coincides with the election campaign periodand ends just before voting ends. It is not difficult to see which party will use this in its favour. Ifthe mediation committee fails to come to a consensus, this could be used to fuel anger inAyodhya once again, against both Muslims as well as the court.

It is not just the idea of mediation but the selection of mediators that casts a doubt on theprocess. While Justice F.M.I. Kalifulla is a retired Supreme Court judge and senior advocateSriram Panchu has been instrumental in making mediation a part of India’s legal system, whatare Sri Sri Ravi Shankar’s qualifications? He has not only flouted laws himself but has espousedthe cause of a temple at the disputed site on multiple occasions. He is the one who said we willhave a “Syria in India” if the Ram Mandir issue is not resolved soon. By no standard does Mr.Ravi Shankar qualify to be a mediator. A mediator is expected to be open-minded and fair, and ifwe go by his controversial statements, it looks doubtful whether he’ll be independent.

At times like this, we expect the apex court to uphold constitutional morality. It does not help in apolitical dispute to replace the constitutional route with a “humanitarian” one. The sentiment ofthe court to “heal relationships” is laudable. But it is only constitutional courage that can steer usthrough these troubled times.

Apoorvanand teaches Hindi at Delhi University








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Source : www.hindustantimes.com Date : 2019-03-14

OPINIONRelevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

The Election Commission of India (ECI) has announced measures to curb fake news andmisinformation on social media platforms. It has brought political parties’ social media contentunder the ambit of model code of conduct, and expects candidates to disclose their social mediaaccounts and all expenditure on their respective social media campaigns.

But will this be enough? After all, the issue of fake news goes beyond politicians and politicalparties, partly because social media puts information dissemination into the hands of individuals.Can any measure adequately monitor the gigantic Indian Internet user base, which exceeds 500million?

Monitoring such a large number of users won’t be possible for reasons as simple as the volumeof content generated, its immediacy and the challenge with identifying sources. Besides,distinguishing between authentic and inauthentic information is in itself a challenge and could beprone to biases, putting enormous power in the hands of those monitoring the content for socialmedia or the commission.

Despite their avowed intention to curb fake news and misinformation, social media companiescontinued to be viewed with distrust by some experts and for good reason -- it is in their interestto maximise time and engagement. At the level of users, social media, it has been found,perpetuate and amplify existing biases, creating so-called filter bubbles. As for the politicalparties and politicians themselves, even assuming their IT cells (every party has one) are aboveboard, it is unlikely they will have either the means or the inclination to crack down on supporterspeddling misinformation.

There’s no denying the power of these platforms. James Harkin, fellow at Shorenstein Center onMedia, Politics and Public Policy, writes in Columbia Journalism Review that journalism is nowthe second draft of history; the first draft is on new and social media.

Nor their impact. Most media consumers have time only to consume first drafts.

During the nascent years of social media (the worldwide web turned 30 yesterday), techchampions called it a tool for open dialogue, not anticipating the bubbles it would create. Beforea social consensus emerges — and as the medium matures — it can only be hoped that theECI’s well-publicised steps make users become wary of the sources they get informationfrom.The ECI’s seriousness will hopefully bring about a sense of accountability amongtechnology companies and political parties, but the organisation is up against it.

That’s because technology companies need incentives to effectively crack down on fake news;political parties must hold themselves back (even as they are likely to succumb to unrestraint intheir resolve to win elections); and consumers should be evolved enough to be able to tell thedifference between fake and real news.

First Published: Mar 13, 2019 07:52 IST


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WHAT IS ABSENTEE BALLOT?Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

This refers to a vote cast by someone who is unable to go to the polling station. The system isdesigned to increase voter turnout. In some countries, the voter is required to give a reason fornot going to the polling station, before participating in an absentee ballot. In India, a postal ballotis available to only some citizens. The Representation of the People Act, 1950 allows heads ofstates and those serving in the armed forces to vote through postal means. The Lok Sabharecently passed a Bill to allow proxy voting for NRIs. However, domestic migrants and absenteevoters in India cannot cast postal votes.








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AN ABHORRENT AND UNJUST DEVICE: ON DEATHPENALTY


On March 5, a three-judge bench of the Supreme Court delivered verdicts in three differentdeath penalty cases. In two of those the court entirely exonerated the suspects, while in the thirdit not only found the accused guilty of murder, but also deserving of capital punishment.Individually read, the judgments typify the deep penological confusion that pervades India’scriminal justice system. Collectively, the cases demonstrate how arbitrary the death penalty is,how its application is mired by a belief in conflicting values, and how the fundamentalrequirement of precision in criminal law has been replaced by a rhetorical cry for avenging crimeby invoking the “collective conscience” of society.

In the first of the cases, Digamber Vaishnav v. State of Chhattisgarh, two persons wereconvicted of murdering five women and were sentenced to death in 2014. A year later, theChhattisgarh High Court affirmed these sentences. But the chief testimony, which formed thebackbone of the prosecution’s case, was that of a nine-year-old child, who was, shockingly, noteven an eye-witness to the crime. This, the court therefore ruled, was effectively a convictionpremised on surmise and conjecture.

Ankush Maruti Shinde v. State of Maharashtra, the second of the cases, saw a gut-wrenchingseries of events being reduced to macabre farce. In 2006, a trial court found six persons guilty ofrape and murder and sentenced each of them to death. A year later, the Bombay High Courtconfirmed the finding of guilt, but commuted the sentences imposed on three of the individualsto life imprisonment. However, in 2009, the Supreme Court not only dismissed the appeals filedby those sentenced to death, but also, astonishingly, enhanced the penalties of the threepersons whose sentences had been commuted by ordering that they too be punished withdeath. In doing so, the court relied on a 1996 verdict, in Ravji v. State of Rajasthan, where it hadruled that in determining whether to award the death penalty “it is the nature and gravity of thecrime” alone that demand consideration. Although in May 2009, the Supreme Court haddeclared its earlier ruling in Ravji incorrect, by holding that even in those cases where the crimeis brutal and heinous the criminal’s antecedents, including his economic and social background,must have a bearing on the award of the sentence, it took until October last year for the court torecall its order sentencing the six persons to death.

During this time, as the court records, “The accused remained under constant stress and in theperpetual fear of death.” What is more, one of them, who was later found to be a juvenile at thetime when the alleged crime was committed, was kept in solitary confinement. He was notallowed to meet any of the other prisoners and was only allowed an occasional meeting with hismother. For their troubles — for having spent more than a decade on death row despite havingcommitted no crime — the bench ordered that the state pay each of them a sum of 5 lakh. Butwhile the court was quick to apportion blame on the prosecution, it didn’t so much as mention itsown errors and its own proclivity to mirror the mentality of a mob.

Yet, we might have been forgiven for thinking that the court’s experience in hearing DigamberVaishnav and, especially, Ankush Maruti Shinde may have made it more circumspect inupholding death sentences. After all, if these decisions had shown us anything, it was that thejudicial process is far from inerrant. But the collective conscience of society, represented throughthe court’s capital punishment jurisprudence, it appears, is still alive and kicking. For in the third

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of the cases, in Khushwinder Singh v. State of Punjab, it not only affirmed the conviction of theaccused, on charges of murdering six members of a family, but also gave its imprimatur to theaward of the death penalty. The murders, the judgment holds, were “diabolical and dastardly”and the case fell into the “rarest of rare” categories where “there is no alternative punishmentsuitable, except the death sentence”.

The rarest of rare doctrine has its origins in Bachan Singh v. State of Punjab (1980). There, thecourt declared Section 302 of the Indian Penal Code, which prescribes the death penalty formurder, as constitutionally valid, but bounded its limits by holding that the punishment can onlybe prescribed in the rarest of rare cases. Since then, the court has repeatedly cautioned thatcapital punishment ought to only be decreed when the state can clearly establish that a convictis incapable of being reformed and rehabilitated. But, in Khushwinder Singh, the court does notplace on record any such piece of evidence that the state was called on to produce. Indeed, thecourt does not so much as attempt to answer whether the accused was, in fact, capable ofreformation or not. Instead, it merely endorses the death sentence by holding that there simplywere no mitigating circumstances warranting an alternative penalty.

That capital punishment serves no legitimate penological purpose is by now abundantly clear.There’s almost no empirical evidence available showing that the death penalty actually deterscrime. If anything, independent studies have repeatedly shown the converse to be true. In theU.S., for instance, States that employ capital punishment have had drastically higher rates ofhomicide in comparison with those States where the death penalty is no longer engaged. InIndia, evidence also points to a disproportionate application of the sentence, with the mosteconomically and socially marginalised amongst us suffering the most. The Death Penalty IndiaReport (DPIR), released on May 6, 2016, by Project 39A of the National Law University, Delhi,for example, shows that 74% of prisoners on death row, at the time of the study, wereeconomically vulnerable, and 63% were either the primary or sole earners in their families. Morethan 60% of those sentenced to death had not completed their secondary school education, and23% had never attended school, a factor which, as the report states, “points to the alienationthat they would experience from the legal process, in terms of the extent to which they are ableto understand the case against them and engage with the criminal justice system.” Just asdistressingly, 76% of those sentenced to death belonged to backward classes and religiousminorities, including all 12 female prisoners.

In the face of this invidiously prejudiced application, the retention of capital punishment utterlyundermines the country’s moral foundations. Over the course of the last decade, the SupremeCourt may well have expanded the rights of death row prisoners: delays by the President indisposing of mercy petitions now constitute a valid ground for commutation; review petitions filedby death row convicts now have to be mandatorily heard in open court. But as the judgmentsdelivered on March 5 reveal, the very preservation of the death penalty creates iniquitousresults. Cases such as Ankush Maruti Shinde, where the accused, as the judgment records,were very poor labourers, “nomadic tribes coming from the lower strata of the society,” ought tomake it evident that the death penalty is an abhorrent and unjust device.

Not only are wholly irrational criteria applied to arrive at dangerously irreversible decisions, thelaw’s application is made all the more sinister by invariably imposing these standards on themost vulnerable members of society. The Constitution promises to every person equality beforethe law. But capital punishment renders this pledge hollow. It legalises a form of violence, and itcloses down, as Judith Butler wrote, expounding Jacques Derrida, “the distinction betweenjustice and vengeance,” where “justice becomes the moralised form that vengeance assumes.”

Suhrith Parthasarathy is an advocate practising at the Madras High Court

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Source : www.pib.nic.in Date : 2019-03-16

REGISTRATION OF POLITICAL PARTIES UNDERSECTION 29A OF THE

Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.Political Parties

Election Commission

Registration of political parties under Section 29A of the

Representation of the People Act, 1951 – Public NoticePeriod

Posted On: 15 MAR 2019 6:06PM by PIB Delhi

Registration of Political parties is governed by the provisions of Section 29A of theRepresentation of the People Act, 1951. A party seeking registration under the saidSection with the Commission has to submit an application to the Commission within aperiod of 30 days following the date of its formation as per guidelines prescribed bythe Election Commission of India in exercise of the powers conferred by Article 324 ofthe Commission of India and Section 29A of the Representation of the People Act,1951. As per existing guidelines, the applicant association is inter-alia asked topublish proposed Name of the party in two national daily news papers and two localdaily newspapers, on two days in same news papers, for inviting objections, if any,with regard to the proposed registration of the party before the Commission within a 30 days from such publication.

3. The commission has announced the elections for the Lok Sabha and Assembliesto Andhra Pradesh, Orissa, Arunachal Pradesh on 10th March, 2019. Therefore, inview of the current elections, the Commission has given one time relaxation and hasreduced the notice period from 30 days to 7 days for the parties who have publishedtheir public notice by 10th March, 2019 i.e. date of announcement of election.

4. Now, therefore, if any body has any objection with regard to the registration of anypolitical party who have published their public notice by 10th march, 2019 may filetheir objection against that party by 17th March, 2019.

*****

SBS/AC

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(Release ID: 1568917) Visitor Counter : 477

Read this release in: Hindi



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WHAT IS A 'HUNG PARLIAMENT'?Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

When no party or pre-poll alliance is able to secure a majority in the election, this leads to ahung Parliament. The total number of seats in the Lok Sabha is 543. A party or coalition needsto win one seat above the 50% mark, or 272 seats, in order to form the government. If it isunable to do so, the President may invite the leader of the single largest party/alliance in theHouse to try to secure the confidence of the House. In the alternative, the President may invite acombination of parties who, in his opinion, might be in a position to command a majority in theHouse.


The Supreme Court’s attempt at mediation has its share of supporters and critics






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THE DEATH PENALTY: A FATAL MARGIN OF ERRORRelevant for: Indian Polity | Topic: Judiciary in India: its Structure, Organization & Functioning, Judges of SC &


On March 5, 2019, a three-judge bench of the Supreme Court headed by Justice A.K. Sikri (nowretired) found Khushwinder Singh guilty and befitting of the death sentence (Khushwinder Singhv. State of Punjab). In 2013, the Fatehgarh Sahib sessions court had convicted and sentencedhim to death for killing six relatives of his wife with the motive of committing theft. The last timethe death penalty was upheld by the Supreme Court was in July 2018 in the Delhi gang rapecase. Since then, the court has acquitted 10 death row prisoners and reduced the sentence tolife imprisonment of 23 others. As Singh’s case moves closer to the gallows, the judgmenthighlights the processes that cause cases to slip through the cracks of the ‘rarest of the rare’doctrine, which mandates a consideration of both the crime and the criminal. The judgmentexemplifies the varied standards of legal representation that impacts the imposition of the deathpenalty.

Singh’s death sentence stands in contrast to nine cases decided by three-judge benchesheaded by Justice Sikri since November 2018 which resulted in six commutations to lifeimprisonment and eight acquittals. In these judgments, the duty of the court to conduct aneffective sentencing hearing was emphasised and factors such as good conduct in custody,education, age, social, emotional and mental condition of the offender, and the possibility ofreform were highlighted as relevant considerations in the sentencing scheme. However, none ofthese factors appear to have been considered for Singh. The judgment declares at the outsetthat Singh’s lawyer “is not in a position to point out any mitigating circumstance”. Withoutcommenting on the effect of that deficiency on the quality of the sentencing exercise beingcarried out by the court, it erroneously relies only on the pre-planned nature of the crime, itsbrutality and the number of victims to impose the death sentence. Grounds relating to thecriminal such as his conduct in prison, his socio-economic and educational backgrounds, or theprobability of reformation receive no comment from the court.

In late 2018, another three-judge bench of the Supreme Court reversed its own finding in M.A.Antony v. State of Kerala, involving the murder of six relatives of the accused. The court choseto commute the death penalty factoring the ‘lack of evidence’ to show that the convict was ahardened criminal or that he was beyond reform. The similarities in the nature of the crimebetween the cases of Singh and Antony are unfortunate and uncannily similar. In both cases, sixfamily members lost their lives, including two children. The motive in both, according to theprosecution, was money and the victims were close relatives. Both convicts were middle-agedmen with families of their own. While in Antony’s case, his socio-economic conditions and lack ofcriminal antecedents were considered by the court in deciding that there was a probability of hisreformation, in Singh’s judgment, there is a complete silence on this aspect, providing yetanother instance of the arbitrary imposition of the death penalty.

The irreversibility of the death penalty has fundamentally affected the jurisprudence around it. Itis commonly accepted that a judge in adversarial proceedings cannot go on a ‘truth searchingexploration’ beyond what is presented. Yet, death penalty jurisprudence is rife with exampleswhere duty has been placed upon the courts to elicit information relating to the question ofsentence, even if none is adduced before it. Justice K.S. Radhakrishnan’s judgment in AjayPandit v. State of Maharashtra (2012), held that the court has a ‘duty and obligation’ to elicitrelevant facts even if the accused was totally silent in such situations. In Santosh KumarSatishbhushan Bariyar v. State of Maharashtra (2009), while discussing the responsibility ofcourts with respect to the sentencing scheme laid out in Bachan Singh v. State of Punjab,

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Justice Sinha opined that Bachan Singh makes no distinction on the roles and responsibility ofappellate courts and therefore it was incumbent upon all courts to ensure the ratio laid down inBachan Singh was ‘scrupulously’ followed, adding, “if anything, inverse pyramid of responsibilityis applicable in death penalty cases”.

Unlike Khushwinder Singh’s case, in the past few months the Supreme Court has rightlyconsidered evidence about the criminal by calling for medical records, reports of prison conduct,including poetry written by a convict post-incarceration to ascertain the appropriate sentence.This was not attempted in Singh’s case. At the core of the arbitrariness in death penaltysentencing is the inconsistent approach to mitigating factors. The Supreme Court has,unfortunately, not developed any requirements that guide the collection, presentation andconsideration of mitigating factors. Very often, barely any mitigating factors are presented onbehalf of death row prisoners; if they are, they are of poor quality. Judges are often left only withinformation concerning the crime to determine the punishment. And, undoubtedly, Singh is avictim of this. He ended up being defined only by his crime with no other information about hislife coming up before the judges. The quality of legal representation continues to affect theadministration of the death penalty, even when cases are decided by pro-active and sensitivejudges.

The inconsistent and arbitrary application of the death penalty remains a matter of great concernto the judiciary. Justice Kurian Joseph’s parting words in Chhannu Lal Verma v. State ofChhattisgarh, calling for the gradual abolition of the death penalty, require serious introspectionfrom the court and the body politic, and for us to recognise that the efforts to make theadministration of the death penalty fairer are like chasing the wind. Our institutions may persistwith attempts to ‘tinker with the machinery of death’ until there is a collective realisation that thedeath penalty is untenable in a fair criminal justice system. Till such time, the setting ofestablished benchmarks for practice, and a system of oversight are necessary to ensure that thequality of legal representation does not become the difference between a sentence of life anddeath.

Rahil Chatterjee is an associate at Project 39A at the National Law University, Delhi. The viewsexpressed are personal


The Supreme Court’s attempt at mediation has its share of supporters and critics






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REPEAT MPS’ ASSETS ROSE 142%Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

The average financial assets of 153 re-elected Lok Sabha MPs grew by 142%, from Rs. 5.5crore in 2009 to Rs. 13.32 crore in 2014, according to an analysis by National Election Watchand the Association for Democratic Reforms.

E. T. Mohammed Basheer of the IUML declared the highest jump of 2,018% (an almost 22-foldsurge), followed by the TMC’s Sisir Kumar Adhikari with 1,700%. The figure for AIADMKparliamentarian P. Venugopal went up by 1,281%.

However, there were also a few parliamentarians whose financial assets registered a sharpdecline: the biggest drop of 67% was reported by the CPI (M)’s P. Karunakaran, while the assetsof the BJP’s Jagdambika Pal shrank 64%. Arjun Charan Sethi of the BJD declared a decrease of39%; for BJP’s Om Prakash Yadav it went down by 27%; and by 21% for the Congress’s K.V.Thomas.

“Financial details of 153 sitting re-elected MPs fielded by various political parties have beentaken from the recently filed affidavits by these MPs and the values of these financial assetshave been compared to the corresponding values of the assets that the MPs showed in theiraffidavits from the previous elections,” the two organisations said.

In the BJP, the assets of Dr. Ramshankar Katheria grew by 869%; those of Shatrughan Sinhaby 778%; the jump was 660% in the case of Danve Raosaheb Dadarao; 608% for Arjun RamMeghwal; 592% for Hari Manjhi from Gaya; and 588% for D.V. Sadananda Gowda. VarunGandhi’s assets increased by 625%. The average for the party’s re-elected MPs was anincrease of 140%.

The MPs of the Congress on average reported a little more than a doubling (109%) in theirassets. Parliamentarian Kodikunnil Suresh’s assets increased by 702%; it was 573% for theformer party president Sonia Gandhi; and 304% for her son and current party chief RahulGandhi.






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WHAT IS INDELIBLE INK?Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

This refers to the violet-coloured ink in India that is applied on a voter’s forefinger after sheexercises her vote. In 1962, the Election Commission in collaboration with the Law Ministry, theNational Physical Laboratory of India and the National Research Development Corporationmade an agreement with Mysore Paints and Varnish Ltd. to manufacture ink that couldn't bewiped off easily. Mysore Paints was founded in 1937 by Maharaja Krishnaraja Wadiyar IV. Thecompany is the sole supplier of indelible ink for civic body, Assembly and Parliamentary polls. Italso supplies ink to about 25 countries. Indelible ink remains bright for about 10 days, afterwhich it starts fading. It is known to contain silver nitrate and is manufactured in secrecy.


Today’s policymakers fail to understand Nehru’s eminently sensible approach






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ANOTHER LOOK AT FISCAL TRANSFERSRelevant for: Indian Polity | Topic: Issues and Challenges Pertaining to the Federal Structure, Dispute Redressal

Mechanisms, and the Centre-State Relations

Federalism is an old concept. Its origin is mainly political. It is well known that the efficiency of agovernment depends on, among other factors, its structure. In large countries, it has been feltthat only a federal structure can efficiently meet the requirements of people from differentregions. Underlying this proposition is the premise that preferences vary across regions.

In our country during the independence struggle, provincial autonomy was regarded as anintegral part of the freedom movement. However, after Independence, several compulsions,which included defence and internal security, led to a scheme of federalism in which the Centreassumed greater importance. Also in the immediate period following Independence, when theCentre and all States were ruled by the same party and when many of the powerful provincialleaders migrated to the Centre, the process of centralisation gathered further momentum.Economic planning at a nation-wide level helped this centralising process.

Fiscal federalism is the economic counterpart to political federalism. Fiscal federalism isconcerned with the assignment on the one hand of functions to different levels of government,and with appropriate fiscal instruments for carrying out these functions on the other. It isgenerally believed that the Central government must provide national public goods that renderservices to the entire population. A typical example cited is defence. Sub-national governmentsare expected to provide goods and services whose consumption is limited to their ownjurisdictions. An equally important question in fiscal federalism is the determination of thespecific fiscal instruments that would enable the different levels of government to carry out theirfunctions. This is the ‘tax-assignment problem’ which is much discussed in the literature on thesubject. In determining the taxes that are best suited for use at different levels of government,one basic consideration is in relation to the mobility of economic agents, goods and resources. Itis generally argued that the de-centralised levels of government should avoid non-benefit taxesand taxes on mobile units.

Strengthening the federal link

This implies that the Central government should have the responsibility to levy non-benefit taxesand taxes on mobile units or resources. Building these principles into an actual scheme ofassignment of taxes to different levels of government in a Constitution is indeed very difficult.Different Constitutions interpret differently what is mobile and what is purely a benefit tax. Forexample, in the United States and Canada, both Federal and State governments haveconcurrent powers to levy income tax. On the contrary, in India, income tax is levied only by theCentral government though shared with the States. Recognising the possibility of imbalancebetween resources and responsibilities, many countries have a system of inter-governmentaltransfers.

The Indian Constitution lays down the functions as well as taxing powers of the Centre andStates. It is against this background that the issues relating to the correction of vertical andhorizontal imbalances have been addressed by every Finance Commission, taking into accountthe prevailing set of circumstances. However, Central transfers to States are not confined to therecommendations of the Finance Commissions. There are other channels such as those throughthe Planning Commission until recently as well the discretionary grants of the Centralgovernment.

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In 2010-11, in the combined revenue receipts of the Centre and States, the share of the Centrewas 64.68%. After transfer, the share came down to 40.20%. In the case of the States, theirshare before transfers was 35.32%. After the receipts of transfers the share of States went up to59.80%. Thus the shares got reversed. In 2016-17, the share of the Centre after transfers was33.37% and that of the States was 66.63%. In the case of total expenditures, the share of theCentre in 2014-15 was 41.14% and that of the States was 58.86%. The ultimate positionappears reasonable. The question may be on the mode of transfers.

The Fourteenth Finance Commission has broken new ground in terms of allocation of resources.One of its major recommendations has been to increase the share of tax devolution to 42% ofthe divisible pool. This is a substantial increase by almost 10 percentage points. Thecommission has argued that this does not necessarily affect the overall transfers but onlyenhances the share of unconditional transfers. It is true that Centrally sponsored schemes,which have ballooned in recent years, may have ‘encroached’ on the territory of States. Overyears, the performance of the Central government is judged not only on the basis of actionstaken which fall strictly in its jurisdiction but also on initiatives undertaken in the areas which fallin the Concurrent and even State lists. Centralised planning has something to do with it. Today,the Central government is held responsible for everything that happens, including, for example,agrarian distress. In viewing the responsibilities of the Centre and States we must take abroader view than what is stipulated in the Constitution.

On the allocation of unconditional transfers, two questions arise. The first is to determine thetotal transfers that need to be made, while the second is whether all transfers must be done bythe Finance Commission alone. Finance Commissions prior to the Fourteenth recognised thatsome transfers were being made by the Planning Commission; this was kept in mind whiledeciding on tax devolution. By the time the Fourteenth Finance Commission was required tosubmit its report, a fundamental change in the institutional framework had occurred.

The Planning Commission was replaced by the NITI Aayog, which was simply a think-tank withno powers of resource allocation. In this context perhaps what the Fourteenth FinanceCommission did was justifiable. Of course, the Fourteenth Finance Commission did what it didbecause the terms of reference had not made any distinction between Plan and non-Planrevenue expenditures. The moot question is about what happens if any future governmentrevives the Planning Commission with financial powers. This will put the Central government in afix.

Perhaps the time has come for the Constitution to be amended and the proportion of shareabletaxes that should go to the States fixed at the desired level. The shareable tax pool must alsoinclude cesses and surcharges as these have sharply increased in recent years. Fixing the ratioat 42% of shareable taxes, including cesses and surcharges, seems appropriate. Anotherpossible route is to follow the practice in the U.S. and Canada: of allowing the States to levy taxon personal income, with some limitations. Since one of the concerns is that resources do notmatch functions, this may be a way out. But, as in the U.S., the scheme should be simple andride on federal income tax, that is, just a levy on the income assessed by federal authorities. Thefreedom given to the States must be limited. It is important to note that the levy by the Centreand States together should be reasonable.

Also once this power is given to the States, the transfers from the Centre need adjustment. Asfar as India is concerned, this is an area which needs a fuller study. Adoption of any one ofthese alternatives will avoid friction between the Centre and the States. Perhaps the firstalternative of constitutionally fixing the ratio is the easiest.

There are issues relating to horizontal distribution. Equity considerations have dominated the

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allocations. This is as it should be. However, the ability of bringing about equalisation acrossStates in India has limitations. Even the relatively richer States have their own problems andthey feel ‘cheated’ because of the overuse of the equity criterion. An appropriate balancing ofcriteria is needed particularly in the context of the rise in unconditional transfers. Of course,appropriate balancing is what all Finance Commissions are concerned about.

C. Rangarajan is former Chairman of the Economic Advisory Council to the Prime Minister andformer Governor, Reserve Bank of India







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Source : www.economictimes.indiatimes.com Date : 2019-03-29

FINANCE COMMISSION CHIEF MAKES CASE FORINSTITUTIONAL MECHANISM TO CHECK FISCALDEFICIT

Relevant for: Indian Polity | Topic: Finance Commission

NEW DELHI: Finance Commission Chairman N K Singh Thursday made a case for setting up a" fiscal council" as an institutional mechanism to monitor fiscal consolidation roadmap of theCentre and state governments.

He also said fiscal federalism is a dynamic process and 'a Work in Motion'.

Singh was speaking at the launch of the book ' Indian Fiscal Federalism' written by Y V Reddy,who had served as RBI Governor as well as Finance Commission Chairman.

Referring to a suggestion in the book, Singh said he too agrees that there should be somemechanism to ensure that basic spirit of devolution process is not undercut by clever financialengineering or taking recourse to traditions that makes it technical and legally tenable butperhaps morally not so.

Emphasising that rules of the game should be same for both the Centre as well as the stateswith regard to borrowings, Singh said, "for state government liabilities, Article 293 (3) provides aconstitutional check over borrowings. But there are no such restriction on the Centre".

"I feel that it is time we have an alternative institutional mechanism like fiscal council to enforcefiscal rules and keep a check on the centre's fiscal consolidation," he said.

Singh, who had also served as revenue secretary in the finance ministry, agreed with thesuggestion in the book that the Finance Commission as envisaged in the Constitution does notprohibit its continuous functioning except that it has to be re-constituted before the tenure endsevery five years.

Talking to reporters later, Singh said, "we do need mechanism for enforcement which will beequally applicable for both the Centre and the states before Finance Commission or any othercan work out and lay out a coherent map of fiscal consolidation".

Recently, Reserve Bank of India Governor Shaktikanta Das too made a case for a permanentstatus to Finance Commission.

At the book launch event, former Deputy Chairman of erstwhile Planning Commission MontekSingh Ahluwalia underlined the need for increasing allocation of funds for the municipalities.

Former Finance Minister of Jammu and Kashmir Haseeb Drabu stressed on the need forcoordination between the Finance Commission and the GST Council.

"GST Council has no clue about what the Finance Commission is doing and FinanceCommission has even lesser clue of what the GST Council is doing," he said, adding there wasa need for institutional mechanism to resolve differences between the central and stategovernments.NEW DELHI: Finance Commission Chairman N K Singh Thursday made a case for setting up a

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" fiscal council" as an institutional mechanism to monitor fiscal consolidation roadmap of theCentre and state governments.

He also said fiscal federalism is a dynamic process and 'a Work in Motion'.

Singh was speaking at the launch of the book ' Indian Fiscal Federalism' written by Y V Reddy,who had served as RBI Governor as well as Finance Commission Chairman.

Referring to a suggestion in the book, Singh said he too agrees that there should be somemechanism to ensure that basic spirit of devolution process is not undercut by clever financialengineering or taking recourse to traditions that makes it technical and legally tenable butperhaps morally not so.

Emphasising that rules of the game should be same for both the Centre as well as the stateswith regard to borrowings, Singh said, "for state government liabilities, Article 293 (3) provides aconstitutional check over borrowings. But there are no such restriction on the Centre".

"I feel that it is time we have an alternative institutional mechanism like fiscal council to enforcefiscal rules and keep a check on the centre's fiscal consolidation," he said.

Singh, who had also served as revenue secretary in the finance ministry, agreed with thesuggestion in the book that the Finance Commission as envisaged in the Constitution does notprohibit its continuous functioning except that it has to be re-constituted before the tenure endsevery five years.

Talking to reporters later, Singh said, "we do need mechanism for enforcement which will beequally applicable for both the Centre and the states before Finance Commission or any othercan work out and lay out a coherent map of fiscal consolidation".

Recently, Reserve Bank of India Governor Shaktikanta Das too made a case for a permanentstatus to Finance Commission.

At the book launch event, former Deputy Chairman of erstwhile Planning Commission MontekSingh Ahluwalia underlined the need for increasing allocation of funds for the municipalities.

Former Finance Minister of Jammu and Kashmir Haseeb Drabu stressed on the need forcoordination between the Finance Commission and the GST Council.

"GST Council has no clue about what the Finance Commission is doing and FinanceCommission has even lesser clue of what the GST Council is doing," he said, adding there wasa need for institutional mechanism to resolve differences between the central and stategovernments.



Indian Polity - MARCH 2019 · 2019-03-30 · Relevant for: Indian Polity | Topic: Issues and...

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Transcript of Indian Polity - MARCH 2019 · 2019-03-30 · Relevant for: Indian Polity | Topic: Issues and...